From: Avellanet, Wayne [Wayne.Avellanet@NAV-INTERNATIONAL.com]
Sent: Monday, February 17, 2003 4:28 PM
To: 'rule-comments@sec.gov.'
Subject: Comments on proposed rule - File No. S7-45-02
Comments submitted by:
Allan Wayne Avellanet, CMA, MBA
Certified Management Accountant
Institute of Management Accounting
21 years experience in private accounting at publicly traded firms with
responsibility for SEC reporting.
In regards to Part 205.3(d) of the proposed rule I respectfully submit the
following observations and suggestion in response to The Commissions request
for;
"The Commission is soliciting comments on proposed alternative provisions,
which prescribe attorney withdrawal in a narrower set of circumstances, and
which require the issuer, rather than the attorney, to report to the
Commission the attorney's withdrawal or written notice of failure to receive
an appropriate response to a report of a material violation. The Commission
also requests comment on whether any rules we are currently adopting under
Section 307 should be revised if we adopt either of these proposals. The
Commission is interested especially in receiving comments from interested
parties outside the legal profession, such as issuers and investors, who
might be affected by, or benefit from, the final rule or the proposals."
Based on my experience and observations I would recommend that The
Commission establish as broad a set of circumstances as possible that would
require an attorney withdrawal. The circumstances and specifics of that
withdrawal MUST be communicated by the attorney themself. I have difficulty
comprehending how an offense could conceivably be communicated in a
meaningful way by the offending issuer organization in any situation. The
public would simply be fed an unrecognizably diluted version of the truth
which would, of course, be prepared by some other, new, attorney with a
slant toward vindicating the issuer.
The objective of the rule is to provide information to the consuming public.
To narrow the set of circumstances requiring the rule would be to provide an
endless number of escape routes for the issuer. The issuer, in every
conceivable situation, could be expected to obfuscate basic facts which
would allow the consumers of information to make an informed decision.
To be of value, information must be timely, accurate and useful for decision
making purposes. With the attorney providing the information to the public
rather than the issuer, the resulting timeliness, accuracy and usefulness is
likely to be much greater than what it would be if provided by the issuer.
In my experience I have never witnessed an issuer expose a shortcoming of a
sitting executive in anything that could be described as direct, accurate
language. I have no information in my possession at this time that would
lead me to believe that there would be any change to this basic tenet of
human nature in the future. Especially among those issuer's executives who
committed the alleged offense in the first place.
In summary, I would respectfully recommend;
* The broadest possible circumstances for attorney withdrawal.
* That the attorney be required to report to The Commission in ALL
circumstances.
* The information regarding the attorney withdrawal be made available
to the investing public.
* The issuer be allowed the priviledge of responding to the attorney's
accusations.
Regards,
Wayne Avellanet
Wayne Avellanet
Plano, Texas
214-986-7131